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Andhra High Court · body

2001 DIGILAW 755 (AP)

M. Gopinath v. State Of A. P.

2001-07-20

V.ESWARAIAH

body2001
V. ESWARAIAH, J. ( 1 ) AGGRIEVED by the judgment dated 27-4-1995 in C. C. No. 5/94 on the file of the Special Judge for C. B. I. Cases. Visakhapatnam, the appellant/accused filed the present appeal. ( 2 ) THE appellant/accused, M. Gopinath, was working as Accounts Assistant, Divisional Accounts Office. South Central Railway. Vijayawada. His duty was to attend and pass Salary Bills, Bonus, D. A. etc. of Railway Engineering Section and also Railway Protection Cell. P. W. 5-D. Lakshminarayana was the Senior Section Officer. Sr. Divisional Office, South Central Railway. Vijayawada. PW. 6-D. Visantha Rao was the Accounts Assistant. Senior Divisional Office. South Central Railway, Vijayawada and his duty was to attend and clear of Gratuity. Bills of the deceased and retired employees. P. W. 6 was on leave from 15-11-1993 to 24-11-1993 and thereafter he extended the leave w. e. f. 25-11-1993. During the leave period of P. W. 6, the appellant was kept incharge of urgent work of P. W. 6. ( 3 ) P. W. 2-Sk. Mastanbee is the wife of late Siddasaheb, who worked in railways and died on 9-4-1989. She was given compassionate appointment as Kalasi in the Office of the Inspector of Works. Railways. Guntur. The death benefits of Siddasaheb were received by PW. 2 except the gratuity amount. Her application to grant the gratuity amount has been passed by the concerned Officer at Guntur and forwarded to the Divisional Accounts Office. Vijayawada. As no reply was received from the Divisional Accounts Office. P. W. 2 went to the office of the accused on 17-11-1993 and enquired about the gratuity amount, which her husband has to get. The gratuity amount, relating to Siddasaheb, which P. W. 2 is entitled to, was Rs. 8,550. 00 which has to be paid by the office of the accused. The accused told P. W. 2 that the concerned clerk (PW. 6) was on leave and he was kept incharge of that seat. PW. 2 requested the accused to clear of the gratuity bill. The accused demanded Rs. 800. 00 to clear the file and release of the amount. P. W. 2 expressed her inability to pay the demanded amount. Initially, she was asked to pay Rs. 300. 00 as first instalment on the afternoon of 25-11-1993 at his Office and the balance amount has to be paid after receiving the gratuity amount. The accused demanded Rs. 800. 00 to clear the file and release of the amount. P. W. 2 expressed her inability to pay the demanded amount. Initially, she was asked to pay Rs. 300. 00 as first instalment on the afternoon of 25-11-1993 at his Office and the balance amount has to be paid after receiving the gratuity amount. As P. W. 2 was not willing to pay the amount, as demanded by the accused, she gave a complaint to P. W. 10-S. B. Shanker. Inspector of Police. C. B. I. Visakhapatnam. PW. 10 in his evidence said that on 24-11-1993 at about 9-30 a. m. P. W. 2 came to him and narrated the contents of Ex. P. 1, which he reduced into writing and she affixed her thumb impression and the carbon copy of the same was marked as Ex. P. 1 (A ). After recording Ex. P. 1, P. W. 10 transmitted the same to the S. P. , C. B. I. , Visakhapatnam, by post. On receipt of the said complaint, P. W. 11-Deputy Superintendent of Police, C. B. I. , Visakhapatnam, registered a case in R. C. No. 15/93 against the accused and issued FIR, Ex. P. 18, on 26-11-1993. On 25-11-1993, P. W. 10 asked P. W. 1-D. Jhansi, Class IV employee, Income Tax Office, Vijayawada Range, Vijayawada, P. W. 3-B. Srinivas Gandhi, Inspector, Central Excise, Vijayawada and others to come to his room. Accordingly, they constituted as a trap party, who gathered in the room of P. W. 10. P. W. 2, the complainant was introduced to the mediators of the trap party. P. W. 2 was asked to give Rs. 300. 00. Accordingly, P. W. 2 Rs. 300. 00 i. e. six currency notes of Rs. 50. 00 denomination each, were tainted with phenolphthalein power and the required first mediators proceedings were prepared, which is marked as Ex. P. 2 at Room No. 15 of the Railway Retiring Room of Vijayawada Railway Station. P. W. 1 ws asked to accompany P. W. 2. All of them started from the office of P. W. 10 at 3. 00 p. m. and proceeded to the office of the accused. P. W. 2 was asked to pay the money, on demand, by getting the accused to the ground floor. P. W. 1 ws asked to accompany P. W. 2. All of them started from the office of P. W. 10 at 3. 00 p. m. and proceeded to the office of the accused. P. W. 2 was asked to pay the money, on demand, by getting the accused to the ground floor. As per the arranged trap, P. W. 2 along with P. W. 1 went to the office of the accused for payment of the amount, on demand, and on seeing P. Ws. 1 and 2, the accused came out of the office room, where he was working, and he asked P. W. 2 who is P. W. 1. P. W. 2 told the accused that PW. 1 is her sister. After sometime they got down from the second floor and proceeded in the direction to Canteen. In the open space between the stair case and canteen, they stopped and on demand of the accused, PW. 2 paid the amount to the accused. After taking the amount with his right hand, the accused counted the money with his left hand and kept the same in his left side pant pocket. After accepting the money, P. W. 1 gave a pre-arranged signal and on seeing the signal, the raid party came there and surrounded the accused. All of them introduced themselves and their identity. The C. B. I. Inspector asked the accused as to whether he has accepted the money. The accused told that P. W. 2 kept the money in his pocket. The accused was taken to his office room on the second floor, where a second mediator s report was prepared, which was marked as Ex. P. 3. Both the hands of the accused were subjected to phenolphthalein test by making him to dip his hands in the sodium carbonate solution, which turned into pink colour and the said solution is marked as M. Os. 1 and 2. M. O. 1 is the bottle containing the solution of the right hand wash of the accused and M. O. 2 is the bottle containing the solution of the left hand wash of the accused. The accused was asked to produce the amount and the accused took out the amount from his left side pant pocket and the said amount was verified with Ex. The accused was asked to produce the amount and the accused took out the amount from his left side pant pocket and the said amount was verified with Ex. P. 2, first mediator s report, in which the numbers of the currency notes and the denomination were mentioned, and the money produced from the pant pocket of the accused found tallied with the numbers of the currency notes and denomination mentioned in Ex. P. 2. Then the accused was taken to his house for the purpose of changing the pant, so as to enable them to test the trouser with phenolphthalein test and there also a test was made, which revealed that the trouser pocket was found with the phenolphthalein powder when it was dipped in the Sodium Carbonate solution, which turned into pink colour and a third mediator s report was prepared, which is marked as Ex. P. 5 and the trouser, which was seized is marked as M. O. 3. The cash of Rs. 300. 00 was seized; and other papers found in the pant pocket were returned to the accused. ( 4 ) IN support of the prosecution case, II witnesses were examined, and Exs. P. 1 to P. 19 and M. Os. 1 to 5 were marked. On behalf of the accused, no defence evidence was adduced. ( 5 ) BASED on the oral and documentary evidence, the learned trial Judge held that the accused made a demand and accepted Rs. 300. 00 as illegal gratification for doing some favour to P. W. 2 and the prosecution has established the guilt of the accused beyond all reasonable doubt warranting a conviction under S. 7 of the P. C. Act. The learned trial Judge further held that the prosecution has established the guilt of the accused beyond all reasonable doubt warranting conviction under S. 13 (1) (d) r/w Section 13 (2) of the P. C. Act, 1988. ( 6 ) LEARNED counsel appearing for the accused submits that the accused did not show any favour to PW 2 because he is not the person concerned to attend the work of PW 6 and PW 6 alone is the concerned person looking after the gratuity bills of the deceased and retired employees. As PW 6 was on leave , the accused was asked to lookafter the urgent cases of T. A. D. A. allowances etc. As PW 6 was on leave , the accused was asked to lookafter the urgent cases of T. A. D. A. allowances etc. during the leave period of PW 6 i. e. from 15-11-1993 to 24-11-1993. The trap was laid on 25-11-1993 and admittedly the accused was not supposed to be incharge of the work of PW 6. On 25-11-1993 PW 6 did not join the duty and sent a telegram , which was marked as Ex. P. 10 (A), and which has an endorsement extending the leave. He further submits that the alleged demand said to have been made be PW 2 on 25-11-1993 appears to be false as on that day PW 6 was to join duty. Learned counsel also submits that according to PW 2 one week prior to the date of trap, she lodged a complaint with PW 7 and that the said complaint was suppressed. The present complaint is on 21-11-1993, the trap was on 25-11-1993 and a crime was registered on 26-11-1993 and therefore, there is a chance of manipulating the issue to throw the blame on the accused, which in fact, PW 2 wanted to make a complaint and trap PWs 5 and 6 i. e. the Section Officer and the concerned Clerk, who are the Section Officer and the concerned Clerk, who are the concerned persons to sanction the gratuity amount. PW 2 wanted the trap party to trap PWs 5 and 6. As PW 6 was not there is his office and PW 5 was laid in the office. PW 5 asked the accused to take the money on his behalf and when the accused accompanied PW 2, she gave the money to the accused for giving the same to PW 5. Another submission made by the learned counsel is that PW 2 also earlier made a letter to lay a trap against one Ramsunder Rao which proved false and therefore her evidence is not believable. ( 7 ) WITH regard to the first submission it has to be seen that admittedly the accused was incharge of the seat of PW 6 who was the concerned officer to attend the files of clearing of the gratuity amount. PW 2 gave a complaint, which was recorded by PW 10, the C. B. I. Inspector in which she clearly stated that she met the accused working in the Divisional Accounts Office. PW 2 gave a complaint, which was recorded by PW 10, the C. B. I. Inspector in which she clearly stated that she met the accused working in the Divisional Accounts Office. Vijayawada, for the purpose of sanctioning the gratuity amount. The accused told to PW 2 that he himself is dealing with the gratuity papers as the concerned clerk was on leave. She also already stated that the facts in the complaint, which was recorded by PW 10 on 24-11-1993 at 10. 00 am. and about the demand of Rs. 800. 00 as bribe and when she expressed her inability to pay Rs. 800. 00 the accused demanded her to pay Rs. 300. 00 on 25-11-1993 out of Rs. 800. 00. The said complaint was drawn in duplicate and the carbon copy of the same is marked Ex. P. 1, which was sent by post to the office of D. S. P. PW 11. Therefore, there was delay in reaching the complaint to the office of PW 11, who immediately on receipt registered the case on 26-11-1993. She also stated in the first mediator s report that the accused, namely M. Gopinath, Accounts Assistant demanded Rs. 800. 00 and out of it Rs. 300. 00 was asked to be paid on 25-11-1993 and that she got Rs. 300. 00 in Rs. 50. 00 denomination each and the numbers of the currency notes were noted in the first mediator s report which were tainted with phenolphthalein powder. In the second mediator s report. Ex. P. 3, it is stated that on seeing PW 2, the accused came out of the office and the accused has asked whether the money was brought to be given to him for settling the grautity papers. Then she said that she brought the money asked by the accused and accordingly she gave the same to the accused and in turn the accused counted the money and kept in his left side of trouser pocket. As per arranged signal of PW 1 the raid party surrounded the accused and PW 1 also narrated the same there itself the way in which the accused took and kept the money. As per arranged signal of PW 1 the raid party surrounded the accused and PW 1 also narrated the same there itself the way in which the accused took and kept the money. When the C. B. I. Inspector requested the accused to produce papers from other pockets of his trouser, the accused was found in possession of 9 loose sheets with different particulars and two out of these sheets i. e. , Ex. Ps 7 (A) and P. 16 containing the particulars of late Siddasaheb, husband of PW 1. It is clear form the aforesaid facts that Ex. P. 16 the paper relating to the gratuity amount of Rs. 8. 550. 00 of the husband of PW 2 was found in the pocket of the accused and as such he has accepted the money and he was incharge of the seat of PW 6 to attend the work relating to sanction of gratuity amount and the quilt of the accused is proved beyond all reasonable doubt and therefore it cannot be said that the accused is not concerned with sanctioning of the gratuity amount and that he did not demand the money for sanctioning the gratuity amount. ( 8 ) WITH regard to the other submission, admittedly, the accused was in charge of the seat of PW 6 and merely because the crime was registered on 26-11-1993, it cannot be said that the trap party has manipulated the case. The complaint was given on 24-11-1993 and the same was reduced into writing on 24-11-1993 at 10. 00 a. m. itself and a carbon copy was sent through post to D. S. P. and immediately after the trap was successfully completed, a case was registered on receipt of complaint by the D. S. P. on 26-11-1993. The trap was proved beyond all reasonable doubt in the presence of indepedent witnesses, and it cannot be said that there is any interest or enmity on the part of the trap party as they are independent witnesses and their action appears to be fair and reasonable. The other contention that the money was accepted on behalf of PW 5 was also unbelievable as the accused was incharge of the seat of sanctioning the gratuity amount and he himself accepted the money. The other contention that the money was accepted on behalf of PW 5 was also unbelievable as the accused was incharge of the seat of sanctioning the gratuity amount and he himself accepted the money. With regard to the other submissions, merely because PW 2 s previous trap fails, it cannot be said that the version of PW 2 is unbelieveable as the gratuity amount file is pending with the office of the accused. PWs 5 and 6. The file relating to the sanction of grauity amount i. e. Ex. P. 6 was in the custody of PW 5, who is only the Section Officer, but the file has to be attended by the concerned officer i. e. , the accused only. ( 9 ) THE facts clearly show that the accused was trapped on receiving an illegal gratification of Rs. 300. 00 from PW 2 by demanding to pay the total amount of Rs. 800. 00 to clear the claim of her husband on account of his death. The particulars with regard to the gratuity file is mentioned in a slip , Ex. P. 16, which was found in the pant pocket of the accused. As PW 2 unable to pay the demanded amount, she gave a complaint to the C. B. I. Inspector. According to the said complaint a trap was arranged. As per the pre-arranged plan. PW 2 paid the amount to the accused and after receiving the signal from PW 1, the trap party surrounded the accused and recovered the amount after phenol-phthalein test. Once the accused accepted the gratification from PW 2, it shall be presumed that the accused has accepted the gratification as well as illegal remuneration. The accused has failed in his attempt to rebut the legal presumption. Unless the contrary is proved, it shall be presumed that there was a demand for taking illegal gratification. Merely because there are minor contradictions, it cannot be said that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. ( 10 ) I have considered the contentions of the learned counsel appearing for the appellant and the Public Prosecutor in detail, I do not see any ground to interfere with the Judgment of the Court below. ( 11 ) IN the result the appeal is dismissed confirming the judgment of the Court below. Appeal dismissed.